Direct and Cross-Examination

By e. robert(bob) wallach and Brian J. McCormack

e.robert(bob) wallach Brian J. McCormack

-DIRECT EXAMINATION-

C ross-examination gets all the glory.

Watching Perry Mason and L.A.
Law, viewers see the hero annihi-
late a witness on cross. And lawyers love to
share war stories about how they destroyed a
witness on cross. But cases are usually won by
presenting the evidence in your case in chief,
i.e., cases are won as a result of direct exami-
nation. It's on direct examination that you pre-
sent the substance of your case: your client's
version of disputed facts and your key evi-
dence (your documents, writings, and demon-
strative exhibits).
But there is an important corollary: Jurors
evaluate a witness's credibility on direct exam
based on their composite view of the wit-
ness's performance under cross-examination.
Judgment is suspended until the witness goes
through the crucible. Jurors expect a witness
to do well on direct. Direct examination is
pivotal to credibility. The likelihood of being
believed on cross-examination begins with
the belief in the witness on direct exam. The
California Litigation Vol. 29• No.3•2016

33
 circle is closed when the jurors — now satis-
fied that the witness has withstood the rigors
of cross-examination — conclude the witness
Cross-examination serves
to discredit direct testimony,
to discredit the witness,
and to reflect
on the credibility
ofother witnesses.
In deposition,
cross-examine the witness
to summarize and lock in
her testimony before trial.'
is credible, with the groundwork having been
laid on direct exam. The witness favored is the
witness the jurors want to succeed.
34
The Law of
Direct Examination
•"Direct examination" is the first exami-
nation of a witness upon a matter not within
the scope of a previous examination of the
witness.(Evid. Code,§ 760.)
•Evidence offered on direct must be rel-
evant, authentic, not hearsay, and otherwise
admissible.
• Leading questions are not allowed on
direct or redirect examination. (Evid. Code,
§ 767, subd. (a)(1).) A leading question is
one that "suggests to the witness the answer
the examining party desires." (Evid. Code,
§ 764.)
Step One in Preparing a Direct
— Examination: Create a Detailed —
Outline or Storyboard ofYour Entire Case
Before preparing any outlines for direct
or cross-examination, first create a detailed
outline or storyboard of your entire case
that includes (1) all of the elements you
need to prove,(2)all of the facts supporting
your client's claim or defense, and (3) all
evidence that you intend to introduce at
trial. Then review the outline to determine
which witness will introduce each fact and
which witness will authenticate and intro-
duce every document, exhibit, or other evi-
dence. After that exercise, you can prepare
outlines of each direct examination. This
detailed outline is also the first important
step in crafting an opening statement.
— Witness Preparation —
Every advocacy course in history begins
with the admonition "prepare the witness."
The goal of witness preparation on direct
exam is to instill in the witness the sense of
confidence needed to encounter and defeat
the cross-examiner. Absent the rare unques-
tionably impeaching document or prior
 statement, the effect of cross-examination is direct. The witness capable on direct will be
measured more by the mariner of response enhanced on cross.
than the skill of the questioner. Jurors evalu-
ate credibility based on how a witness
responds.
Preparation for direct must give witness-
es the confidence that they can respond to
whatever comes their way on the witness
stand. This includes predictable weaknesses 4 General
to be exploited by the opponent, even if an
attempt to diffuse it has been undertaken on
direct. And this includes the unexpected — direct-examination principles
the e-mail, not found, which appears to
impeach. In both instances, the direct wit-
ness who is calm in response, resolute in also apply to experts.
affirming her testimony, and able to remain
eye to eye with the examiner has the great-
est probability of being fully rescued on redi- Ultimately,
rect or by other witnesses, or of being for-
given by the jurors who have already nur-
tured a favorable witness. you wantjurors
"Preparation" means helping the witness
to understand the case in its entirety. What
is the theory? How does the evidence sup- to believe your expert
port it? What are the vulnerabilities? How to
respond to them? What are the opponents'
strengths? How to diminish them? What to and to disregard
concede to demonstrate credibility? What to
resist no matter what?
The witness must believe that so much the other side's hired gun.
energy and commitment have been expend-
ed in preparation that nothing the opposi-
tion can do will prevail. The bond between
lawyer and witness becomes so rooted in the MMME1111 •11 1

lawyer's obvious determination to protect

the witness that the witness knows no swim-
ming in deep water will be permitted until
the art of survival is intrinsic to his being.
Mock cross-examination must be done as a
part of the preparation for direct. Language
is honed to heighten the ability to express
the points to be made. Even the truth must
be well told.
The witness who is prepared to sustain
cross-examination will be outstanding on
— Direct Examination Technique —
Trim every direct examination to its bare
essentials. Ask yourself: Does the jury need
anything else for deciding your way on the
verdict form? Try not to ask a single question
that is not directly on point.
Ask short questions. But answers need
not be short. Answers must be as long or

35
 short as necessary to give the jury a basis to A:It ran a stop sign.
be comfortable in evaluating the witness. A Q: After the car ran the stop sign, what
terse "no" can give evidence of resolute cred- was the first thing that happened?
ibility. Turning to a jury and explaining why A:The car hit Mr. Jones.
something was done or not done, even if this
is a lengthy narration, can be the basis of
establishing a bond of believability with
jurors.
•Use clear, simple language.
•Begin direct examination questions with
the following words: Who? Where? What? 4 Highlight
When? Why?
• The goal is for the witness to tell the
story. Keep the witness the center of atten- all assumptions
tion instead of the lawyer. The lawyer should
stand and focus on the witness without any
idle or distracting conduct. The lawyer the expert relied on
should remain eyes-focused on the witness
while the answer is given—as though coun-
sel has never heard this answer before. informing his opinion.
• Note-taking after an answer is a con-
scious way to allow the answer to be "heard."
The pace of questioning should be consistent
with the fact that jurors are not experienced
Highlight
listeners.
•Periodic references to "the jurors," as in
"please tell the jurors directly," reinforces what the expert did not do,
their importance, gains their attention and
requires the witness to return to speak to
them. and records
• Questions that ask the witness to
expand upon an answer as though not fully
understood or a logical follow-up to what he did not review.'
might well be in the mind of a juror, helps to
convert a narrative into a colloquy.
• Think of different questions that will
allow the witness to repeat and restate
important points for your case.
• Illustrate the witnesses' testimony with
exhibits. Q: What happened after the car hit Mr.
• Control your witness on direct. For Jones?
example, if you wanted the witness to testify A: Mr. Jones was thrown at least 10 feet.
that a car ran a stop sign and hit a pedestri- •Good direct examination guides the wit-
an, you would ask: ness to the right topic without telling the
Q: What did the car do? witness what to say or how to say it.

36
 • The classic advocacy guidance to ask
"narrow" questions that lead witnesses to
where they are supposed to go is not always
applicable. Jurors are experienced in holding
conversations and evaluating the person
with whom they are engaged in that context.
A skillful lawyer can "lead" a witness without
asking "leading" questions.
• Use questions that orient the witness to
the next topic. For example: "Mr. Smith,
before we talk about executive compensa-
tion at XYZ Corporation, I'd like to talk to
you about your background in the manufac-
turing industry before you came to work for
XYZ. When did you start working in the man-
ufacturing business?"
Steal the
Cross-Examiner's Thunder
With your witness on direct, anticipate
points that your opponent will bring up on
cross-examination. Use the exact question
that you anticipate would be asked on cross-
examination of your own witness or client.
For example: "Why was Mr. Jones, a male
executive, paid more than 20% more than
Ms. Smith,a female executive who has a very
similar job description?"
Try to end your direct examination with
an important fact. And try to elicit an impor-
tant fact just before the jurors leave for a
midday break or go home for the evening.
Your First
Witness Is Critical
After opening statements,jurors know the
important issues. The direct examination
should flow to the major issues without
delay. Jurors' interest in the party-witness is
at its height when the witness first takes the
stand. Expectations to finally have the
opportunity to put their life experience to
use as evaluators of credibility must not be
disappointed.
The first witness should be able to tell
some significant part of the overall story. If
you are the plaintiff, lead off with what the
defendant did.
Your first witness must be cross-proof.
Cross-examination of your first witness is
the first time jurors see your case tested. If
your witness holds up under cross, the
jurors form an initial belief that you are cred-
ible. If the cross-exam shows holes in your
claims, the jurors' initial belief will be that
you are not altogether credible. If your oppo-
nent is able to impeach your first witness,
that's enough to inject permanent doubt into
your case.
— Expert Witnesses —
General direct-examination principles
also apply to experts. Ultimately, you want
jurors to believe your expert and to disre-
gard the other side's hired gun. Two impor-
tant goals for your expert's direct exam are
(1)to convince the jurors that your expert is
more qualified, more prepared, and flat-out
better than the opposing expert, and (2) to
make sure that the jurors understand the
complicated concepts that your expert is
testifying about (e.g., statistics, engineering,
or medicine).
Make sure that the jury understands the
technical concepts that are necessary to
your case as well as the work performed by
the expert before discussing the expert's
opinion.
• Use simple language and examples to
explain technical terms or concepts.
•Use short questions.
•Use demonstrative evidence to explain a
point. With expert testimony especially, "a
picture is worth a thousand words."
• Use hypothetical questions and assump-
tions.
• Allow the expert to explain how each of
his findings helps prove your case.
• Anticipate cross-examination to steal
the opposing counsel's thunder.
37
 • Anticipate evidence from the opposing
party's expert and allow your expert witness
to rebut or refute the opposing expert.
• At the end of the expert's testimony,
summarize the case with missing pieces filled
in with the expert's testimony.
— Cross-Examination —
Cross-examination serves to discredit
direct testimony, to discredit the witness, and
to reflect on the credibility of other witness-
es. In deposition, cross-examine the witness
to summarize and lock in her testimony
before trial.
•"Cross-examination" is questioning by a
party other than the one who called the wit-
ness to testify, on matters within the scope of
the witness's testimony on direct examina-
tion.(Evid. Code,§ 761.)
•Right of Cross-examination: Cross-exam-
ination is the most reliable and effective way
of testing witness credibility, knowledge, and
recollection. (Goldberg v. Kelly (1970) 397
U.S. 254,269-270.)
• Leading questions permitted: A leading
question may be asked of a witness on cross-
examination or recross-examination. (Evid.
Code,§ 767,subd.(a)(2).)
• Adverse Witnesses: Under Evidence
Code section 776, subdivision (a), a party to
the record of any civil action, or a person
identified with such a party, may be called
and examined as if under cross-examination
by any adverse party at any time during the
presentation of evidence by the party calling
the witness.
• The general rule is that cross-examina-
tion is limited to the scope of the direct.
— Cross-Examination Techniques —
There are three times during trial when
you can speak directly to the jury:(1) open-
ing statement, (2) cross-examination, and
(3) closing argument. Cross-examination is
an opportunity to restate your case right in
the middle of the other side's case. In a good
38
cross-examination, the lawyer is the real wit-
ness while the witness on the stand merely
agrees with the lawyer's statements.
•Do not use cross-examination to ask the
witness for information (you already know
the information).
• Make a statement of fact and have the
witness agree to it.
• Use short, clear, one-fact-at-a-time
questions.
• Use cross-examination to get the infor-
mation directly to the jury. For example:
Q: You read this contract before you
signed it?
A: Yes.
Q: And you signed the contract on page
10?
A: Correct.
Q: And you initialed each page on the bot-
tom right hand corner?
A: Yes.
Q: And paragraph 12 states that the con-
tract can only be amended in a writing
signed by both parties?
A: Correct.
Q: And you initialed immediately below
paragraph 12?
A: Yes.
•Do not repeat the direct examination.
• Have no more than three or four points
that support your theory of the case.
•Make your strongest points at the begin-
ning and end of your cross-examination.
• Know the probable answer to your
question before you ask it.
• Never ask the witness to explain her
response.
• Impeach with prior inconsistent
statements, e.g., inconsistent deposition
testimony.
•Keep control over the witness.
•Be pleasant and courteous.
• Often the more hostile the examiner,
the more sympathetic the jury will be to the
witness. Clever questions asked by superbly
trained, well-educated lawyers can evoke a
sense of anger in jurors, who realize that
they could well be intimidated by such an
examination.
• Jurors identify with the witness, not the
lawyer.
• Elicit favorable testimony early in the
cross-examination.
• Try to discredit unfavorable testimony.
Show bias, interest, and motive. Bias is a ten-
dency or inclination that a person has that
prevents him from being impartial. This
could involve showing a family, personal or
employment relationship that renders the
witness incapable of being impartial.
• Don't ask the proverbial one question
too many. Stop when finished.
Expert Cross-
Examination Techniques
•Do you cross at all, or a short cross?
• Start with questions in more challenging
areas.
• Use short, one-fact-per-question ques-
tions.
• Add to the foundation of your case by
getting the opposing expert to agree with
your expert as to facts not in dispute.
• Use witness control devices such as:
"Move to strike as nonresponsive"; or "That
is not my question. My question is..."; or
"Doctor, the question called for a yes or no
— just yes or no."
•Point out bias, interest, or prejudice.
• Ask commonsense questions. E.g.,"And
you would agree, doctor, that sometimes
people fall and it's no one's fault but their
own?"
• Highlight all assumptions the expert
relied on in forming his opinion. Highlight
what the expert did not do, and records he
did not review. The most reliable attack on
an opposing expert's opinion is to show how
he ignored certain required steps in arriving
at his opinions.
•Do not attempt to invade the province of
expertise in an effort to persuade the jury
that the lawyer knows more about the topic
than the expert.
•Be respectful to the opposing expert. Do
not be sarcastic or rude. Do not interrupt
except when absolutely necessary.
• Keep in mind that many very competent
people of integrity may provide expert testi-
mony for the other side.
The Key to Effective
Cross-Examination ofan Expert at Trial
Is to Thoroughly Cross-Examine
the Expert in Deposition
Know the answer to the question before
you ask the question. But how do you know
the answer before you ask the question? You
know because you were thoroughly prepared
for the expert's deposition and cross-exam-
ined the expert at deposition. Even if the
expert answered a question at deposition in
a way that you did not anticipate (or don't
like), you have locked the expert's testimony
down before trial.
• Have your own expert supply you with
technical questions for the opposing expert's
deposition.
•Impeach the opposing expert with prior
testimony, depositions, or other witnesses.
•Plan where to begin and end.
•Give the expert a chance to explain.
• Do not ask one question too many.
e. bob Wallach is Senior Trial Counsel to Rains
Lucia Stern, PC, continuing a 53-year career
as a civil trial lawyer with a heavy emphasis
on plaintiffs' personal injury. [Editor's note:
Eschewing capital letters in his name is one of
e. bob's endearing hallmarks.]
Brian J McCormack is a partner at Callahan
& Blaine in Santa Ana, where his practice
focuses on high-stakes, complex civil and busi-
ness litigation and catastrophic personal
injury.
39